If a government lawyer is pursuing her own furlough complaint, can she also defend the agency against other employees' furlough complaints?
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This page answers the general question as of 2013. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 365 (published April 2013) responds to inquiries that arose from sequester-related federal furloughs. The Committee posed a hypothetical: an agency lawyer whose normal job is defending the agency against employee complaints is herself furloughed, files her own complaint challenging the furlough, and is then asked to defend the agency against substantially similar furlough complaints filed by other employees, where resolving one complaint may have a persuasive or binding effect on the others. The opinion analyzes whether the D.C. Rules permit that representation.
The opinion concludes the situation is not a non-waivable conflict under Rule 1.7(a), because each employee's furlough challenge is a separate "matter," so the lawyer is not advancing "two or more adverse positions in the same matter." It is instead an individual-interest conflict under Rule 1.7(b)(4): a lawyer pursuing her own furlough complaint "might be motivated to pull her punches" in defending against similar complaints by others, so her professional judgment for the agency may be adversely affected by her own interests.
Such a conflict can be waived under Rule 1.7(c), but the opinion concludes both conditions must be met. The agency's informed consent satisfies Rule 1.7(c)(1). Consent alone is not enough, however; under Rule 1.7(c)(2) the lawyer must also reasonably believe she can provide competent and diligent representation, and that belief must be objectively reasonable (the standard of "a reasonably prudent and competent lawyer," Rule 1.0(j)). The opinion concludes that reasonable-belief requirement is "a difficult obstacle to surmount" when the allegations are substantially similar, becoming harder as the allegations "converge towards sameness" and especially where one decision will bind or persuade the resolution of the other; the obstacle recedes when there is no factual or legal overlap. The opinion also addresses supervising and subordinate lawyers under Rules 5.1 and 5.2: managers must make reasonable efforts to ensure subordinates comply with the Rules, and a subordinate does not violate the Rules by acting on a supervisor's reasonable resolution of an arguable question of professional duty.
In practice
Under the D.C. rules as they stood at the time of the opinion, a government lawyer who is pursuing her own furlough complaint and is asked to defend the agency against substantially similar complaints by other employees faces an individual-interest conflict under Rule 1.7(b)(4), not a non-waivable Rule 1.7(a) conflict, because each complaint is a separate matter. The opinion concludes the conflict can be waived under Rule 1.7(c) only if the agency gives informed consent and the lawyer reasonably and objectively believes she can provide competent and diligent representation; it characterizes that reasonable-belief requirement as a difficult obstacle that gets harder as the allegations converge.
The opinion also concludes that supervisory lawyers in the agency have Rule 5.1 obligations to make reasonable efforts to ensure subordinate lawyers comply with the Rules, and that under Rule 5.2 a subordinate lawyer who follows a supervisor's reasonable resolution of an arguable question of professional duty does not thereby violate the Rules. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.
Common questions
Q: Is defending the agency against others' furlough complaints while pursuing my own a non-waivable conflict?
A: The opinion concludes no. Because each employee's furlough challenge is a separate matter, the lawyer is not advancing two or more adverse positions in the same matter, so Rule 1.7(a) is not triggered; the conflict is the waivable individual-interest type under Rule 1.7(b)(4).
Q: Does the agency's consent resolve the conflict?
A: The opinion concludes consent is necessary but not sufficient. The agency's informed consent satisfies Rule 1.7(c)(1), but under Rule 1.7(c)(2) the lawyer must also reasonably and objectively believe she can provide competent and diligent representation despite her own complaint.
Q: What makes the reasonable-belief requirement harder or easier to meet?
A: The opinion concludes the obstacle grows harder as the allegations in the lawyer's own complaint and those she is defending converge toward sameness, and is compounded when one decision will bind or persuade the other; it is less likely to be an obstacle when there is no factual or legal overlap.
Q: What are the obligations of lawyers who supervise a furloughed lawyer?
A: The opinion concludes that under Rule 5.1 supervisory and managerial lawyers must make reasonable efforts to ensure subordinate lawyers conform to the Rules, and may be responsible for a subordinate's violation they order or ratify.
Q: Is a junior lawyer protected if she follows a supervisor's call on the conflict?
A: The opinion concludes that under Rule 5.2 a subordinate lawyer who acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty does not violate the Rules, though the subordinate remains bound by the Rules notwithstanding a direction to violate them.
Background and rules framework
The opinion interprets D.C. Rule 1.7, distinguishing the non-waivable conflict in Rule 1.7(a) (advancing adverse positions in the same matter) from the waivable individual-interest conflict in Rule 1.7(b)(4) and its waiver conditions in Rule 1.7(c), read with the definitions of "matter" and "reasonable" in Rule 1.0. It also applies Rule 5.1 (responsibilities of supervisory and managerial lawyers) and Rule 5.2 (subordinate lawyers). The opinion notes that separate bodies of federal law (for example, 5 C.F.R. parts 351, 752, and 2635) govern furloughs and the conduct of executive-branch employees, but that those questions fall outside the Committee's authority.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.7(a), 1.7(b)(4), 1.7(c) / Model Rule 1.7 (non-waivable conflicts; individual-interest conflicts; informed consent)
- D.C. RPC 1.0 / Model Rule 1.0 (definitions of "matter" and "reasonable")
- D.C. RPC 5.1 / Model Rule 5.1 (supervisory and managerial lawyers)
- D.C. RPC 5.2 / Model Rule 5.2 (subordinate lawyers)
Other opinions cited:
- ABA Formal Op. 04-432 (2004): personal-interest conflict in posting bail for a client
- D.C. Bar Legal Ethics Op. 300 (2000); Op. 344 (2008); Op. 354 (2010)
See also
- NY State Bar Op. 968: Government Lawyer Furlough Conflict
- DC Ethics Op. 367: Job-Seeking With a Client's Adversary
- DC Ethics Op. 380: Witness Conflicts of Interest
- ABA Formal Op. 97-405: Conflicts in Representing Government Entities
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-365
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